RATHNAMMAL ALIAS RAJAMANI AMMAL Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF COIMBATORE

JUDGEMENT

(1.) This appeal raises the question whether the Revenue authorities of the Province have the power to impose a penalty under the Madras Irrigation Cess Act, 1865, when water is taken without permission during the second crop season for the purpose of irrigating land classified as "single crop wet" and the source from which the water is taken is the source authorised for the irrigation of one crop. One Krishnammal was the pattadar of lands in the village of Sulur, Coimbatore District. The lands, which are registered as Survey Nos. 182 and 269, are single crop wet lands. For many years betel leaves have been grown on Survey No. 182 and cocoanut trees on Survey No. 269. The surrounding lands are all registered as double crop wet lands. On 1 February, 1928, Krishnammal applied to the Collector for permission to convert her lands into double crop wet lands, but she died before her application could be considered. Her daughter Venkatalakshmi Ammal then made a similar application, but she was told to present it again after the patta had been registered in her name. The lands were irrigated by water flowing through a channel constructed by the Government from a tank known as the Sulur Tank. In the year 1925-26 permission had been given to Krishnammal to take water from the channel during the second crop season, but in the following year she took extra water without permission, which resulted in the Revenue authorities charging her twice the water cess ordinarily payable for a first irrigated crop under the rules framed by the Government in purported exercise of the powers conferred by the Madras Irrigation Cess Act. For the year 1927-28 water was again taken without permission by Krishnammal and on this occasion a penalty of five times the ordinary water cess was imposed. In the year 1928-29 her daughter Venkatalakshmi Ammal took water without permission during the second crop season and on this occasion the penalty imposed was ten times the ordinary water cess, amounting to Rs. 257-10-0. This resulted in Venkatalakshmi Ammal filing a suit in the Court of the District Munsif of Tirupur for the recovery of the amount on the ground that the infliction of the penalty was unlawful. The District Munsif dismissed the suit and his decision was upheld by the Subordinate Judge of Coimbatore. Venkatalakshmi had died in the meantime and the appeal was preferred by her daughter, as her legal representative. Having lost before the Subordinate Judge the appellant appealed to this Court. The appeal was heard by King, J., who concurred in the decisions of the District Munsif and the Subordinate Judge, but granted a certificate permitting the present appeal under Clause 15 of the Letters Patent.

(2.) The decision of the appeal depends upon the interpretation to be placed upon the second proviso to Section 1 of the Madras Irrigation Cess Act. This section, omitting the first proviso which has no bearing here, reads as follows: 1. (a) Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to, or constructed by Government and also, (b) whenever water by direct or indirect flow or by percolation or drainage from any such river, stream, channel, tank or work from or through adjoining land irrigates any land under cultivation or flows into a reservoir and is thereafter used for irrigating any land under cultivation, and, in the opinion of the revenue officer empowered to charge water cess, subject to the control of the Collector, the Board of Revenue and the Government such irrigation is beneficial to, and sufficient for the requirements of the crop on such land, it shall be lawful for the Government before the end of the revenue year succeeding that in which the irrigation takes place to levy at pleasure on the land so irrigated a separate cess for such water, and the Government may prescribe the rules under which, and the rates at which, such water cess as aforesaid shall be levied; and alter or amend the same from time to time: Provided also that no cess shall be leviable under this Act in respect of land held under ryotwari settlement which is classified and assessed as wet, unless the same be irrigated by using without due authority water from any source herein before mentioned and such source is different from or in addition to that which has been assigned by the Revenue authorities or adjudged by a competent Civil Court as the source of irrigation of such land.

(3.) The appellant's case is that inasmuch as her mother had the right to take water for one crop from the channel from the Sulur tank, no penalty could be imposed upon her for taking water during the second crop season. It is said that the Government's power to impose a penalty is limited by the proviso to a case where water is taken from a different source or a source in addition to that assigned. On behalf of the respondent it is said that if a source has been assigned for a single crop and the same source is used during the second crop season it must be deemed to be a different source within the meaning of the proviso. It is also urged that the rules framed by the Government under Section 1 govern the interpretation of the section, as there is, it is said, ambiguity in the wording. It is further contended that the Court should read the word "and" which follows the words "from any source hereinbefore mentioned" in the proviso as meaning "or".